The Pentagon Papers (Daniel Ellsberg) Trial: An Account
“[T]he sonofabitching thief is made a national hero and is going to get off on a mistrial, and the New York Times gets a Pulitzer Prize for stealing documents…What in the name of God have we come to?” —President Richard Nixon (Oval Office discussion, May 11, 1973)
Background: The Pentagon Papers StudySecretary of Defense Robert McNamara, who commissioned the Pentagon Papers study
Secretary of Defense Robert McNamara, growing concerned that the long war in Vietnam was unwinnable, first considered in late 1966 commissioning a study of the history of U. S. decision-making in Indochina. By June of the next year, the Secretary decided to proceed with the study, which McNamara said should be an “encyclopedic history of the Vietnam War.” He believed, he later said, that a written record of the key decisions that led to the U.S. involvement in Vietnam would be of great value to scholars. Morton Halperin, one of McNamara’s top aides, was chosen to direct the study. Much of the day-to-day responsibility for supervising the study was delegated to Leslie Gelb.
The McNamara study staff was given access to McNamara’s personal files, memoranda from the White House and the Joint Chiefs of Staff, State Department records, and to specially requested information from the CIA. The frequently rotating professional staff for the study came from the Pentagon, the State Department, universities, and “think tanks” such as Rand. One of the first person recruited to help with the study was Daniel Ellsberg, a former Rand and Pentagon employee with six years of Vietnam-related experience. Ellsberg’s work for the study focused on the Kennedy Administration’s Vietnam policy in 1961.
In early 1969, the “Pentagon Papers” (formally, History of U.S. Decision-making in Vietnam, 1945-1968) study was complete. The massive work, examining Indochina policy from 1940 to 1968, consisted of 7,000 pages bound into forty-seven volumes. Pentagon officials classified the study “Top Secret” and published only fifteen copies. Although a historical study, officials worried that information contained in the Pentagon Papers, if it became public, would make foreign governments hesitant to engage in secret negotiations or provide secret assistance to the United States government. Officials also expressed concern that some of the information contained in the report came from wiretaps and bugging devices, and should the information be released it would likely jeopardize electronic surveillance and sensitive sources of information.
Daniel Ellsberg grew increasingly pessimistic about the chances of anything resembling a U.S. victory in Vietnam. The options, as he saw them, presented a choice between bad and worse. Shortly after the election of Richard Nixon as president in November 1968, Ellsberg was tapped to prepare a study of Vietnam “options” for Henry Kissinger, Nixon’s newly-appointed national security adviser. In presenting his evaluation of options, Ellsberg found that Kissinger shared his negative assessment of the odds of a military victory. Ellsberg felt cautiously optimistic that Kissinger would help push Nixon to a policy of an early exit from the morass of Vietnam.
After meeting with Kissinger, Ellsberg returned to his work at the Santa Monica office of Rand, where he began reading the Pentagon Papers. As he read through the secret history of U.S. support for French efforts to crush independence movements in Indochina in the 1950s, Ellsberg came to see the continuation of the war in Vietnam as not just bad policy, but as immoral.
By mid-summer 1969, it became clear to Ellsberg that Nixon had no intention of simply declaring victory and pulling out of Vietnam. The president did not want to see the flag of the Vietcong fly over the city of Saigon. Faced with the prospect of a war without end, costing thousands of American and Vietnamese lives, Ellsberg pondered what he might do to bring about a change in U.S. policy. After attending an emotional conference of War Resisters at Haverford College in August, Ellsberg suddenly felt “liberated”–and ready to take action to end the war, even if it put himself at risk.
Convinced that release of the Pentagon Papers would make an already skeptical public more likely to apply the pressure that might finally bring an end to our involvement in Vietnam, Ellsberg decided to try to make that happen. When the public understood how it had been misled by past presidents, Ellsberg thought, they would no longer buy what the current president was telling them now. On September 30, 1969, Ellsberg visited the apartment of an anti-war friend of his, Anthony Russo. Ellsberg told Russo, “You know the study I told you about a couple of weeks ago? I’ve got it at Rand, in my safe, and I’m going to put it out.” Russo replied, “Great! Let’s do it.”
Daniel Ellsberg
The next evening, leaving his Santa Monica office, Ellsberg slipped a couple of thick volumes of the top secret Pentagon Papers into his briefcase and headed out through Rand’s lobby, past two security cards who simply waved him by. Ellsberg took the volumes over to Russo’s apartment. From there, the two men and Russo’s girlfriend, Linda Sinay, traveled to the offices of an advertising agency that Sinay ran. Using a Xerox machine in the agency’s reception area, Ellsberg and Russo began the time-consuming process of photocopying the Pentagon Papers. They didn’t leave the office until 5:30 the next morning.
The next night, and for many nights thereafter, the copying continued. Ellsberg knew that what he was doing was a crime–and he fully expected the day would come when he would pay a heavy price for his actions. He imagined when his children would come to a prison somewhere and “see me brought into the visitors’ booth in handcuffs, wearing prisoner’s clothes.”
In early November, Ellsberg carried the Pentagon Papers to Capitol Hill, where he met with anti-war congressman to discuss strategies to end U.S. involvement in Vietnam. Ellsberg told Senator William Fulbright, chairman of the Senate Armed Services Committee and a Vietnam policy critic, that he had a copy of a secret study that might change public opinion about the war. At Fulbright’s suggestion, Ellsberg left a copy of the Pentagon Papers with Fulbright’s legislative aide, Norvil Jones.
The next year Ellsberg stepped up his anti-war activities. He resigned from Rand, testified about Vietnam policy before Fulbright’s Senate committee, spoke at an anti-war “teach in” at Washington University in St. Louis, and argued for an immediate withdrawal on the national television program The Advocates. In late August 1970, Ellsberg traveled to Kissinger’s San Clemente office, where he urged Kissinger to read the Pentagon Papers and to reconsider the Administration’s Indochina policy. Ellsberg left his meeting with Kissinger depressed, believing that the lessons of history would not be learned and there was little prospect for a substantial withdrawal of U. S. troops.
By the end of 1970, Ellsberg was giving serious thought to turning a copy of the Pentagon Papers over to the New York Times. First, however, he attempted to find an anti-war senator who might release the study. Ellsberg met with George McGovern, an announced candidate for the Democratic presidential nomination. McGovern responded enthusiastically to Ellsberg’s suggestion, but later–when the political implications for his candidacy of releasing a classified study became clearer–he decided he just couldn’t do it. If the public where ever to find out the secret history of U. S. involvement in Indochina, Ellsberg would have to go to the press.
On March 2, 1971, Ellsberg traveled to the Washington, D. C. home of New York Times reporter Neil Sheehan and discussed with him the possibility of turning over to the paper a copy of the Pentagon Papers. Ten days later, the two men met again in Cambridge, Massachusetts. Ellsberg sought to get Sheehan to commit to publishing large sections of the study, and Sheehan said he would push his editors to do just that. After Sheehan returned to New York, copy of the Pentagon Papers in hand, he and other reporters at the Timesspent the next several weeks sifting through the thousands of pages of the report, looking for reports and anecdotes that would tell a compelling story of how we got into the mess that had become the Vietnam War.
The Nixon Administration Goes to Court to Stop Publication
New York Times reporter Neil Sheehan, Managing Editor A. Rosenthal, and Foreign Editor James Greenfield
On Sunday June 13, 1971, the New York Times ran a three-column, front-page story containing excerpts from the Pentagon Papers. At the White House, Richard Nixon read the story with a mixture of disgust and relief. although he told aide H. R. Haldeman that it was “criminally traitorous” for someone to have turned over the Papers and for the Times to then publish them, he was relieved to find that the Papers focused on the earlier missteps of earlier administrations, not his. His first reaction was to “keep out of it” and let the story run its course, but later in the day a riled Henry Kissinger urged Nixon to take steps to stop publication of further stories based on the Pentagon Papers. In Kissinger’s view, the release of information threatened ongoing secret negotiations.
As soon as he learned of the Times impending publication of the Pentagon Papers stories, Ellsberg bundled a few things from his apartment and went underground. Over the next couple of weeks, as the FBI searched for him, Ellsberg would move from one Massachusetts hotel to another, using pay phones for all his communications.
On June 15, as the Times published its third installment in the series, the Department of Justice filed a demand for an injunction against further publication in federal district court in New York City. After listening to arguments from lawyers for both the Times and the government, Judge Murray Gurfein granted a temporary restraining order against the Times and then scheduled another hearing for June 17.
With further publication at least temporarily blocked in New York, Ellsberg contacted Ben Bagdikian of the Washington Post and offered him an additional copy of the Pentagon Papers. After a heated discussion between reporters, editors, and lawyers at the Post, the question of whether to publish in the face of the New York court’s injunction was presented to publisher Katherine Graham. Fully aware of the potentially serious legal and financial implications of publishing, Graham nonetheless tells editors, “Okay, go ahead.”
Over the next several days, in courthouses in both New York and Washington, lawyers debated whether the First Amendment permitted the government to enjoin publication of stories based on the Pentagon Papers. Lawyers for the papers stressed that “prior restraints,” such as injunctions of this sort, were “presumptively unconstitutional” and that the government “had a heavy burden of justification” which in these cases had not been met. Justice Department lawyers, on the other hand, argued that information contained in the classified documents might jeopardize sensitive relationships with foreign governments and put the lives of military personnel and other government agents at risk. By June 23, the D.C. Circuit Court of Appeals had voted 7 to 2 to deny an injunction against publication in the Washington Post, while the Second Circuit Court of Appeals had remanded the question of injunctive relief against the New York Times to the district judge for further in camera proceedings. It was obvious to all observers that the issue was headed for a showdown in the United States Supreme Court. On June 26, one day after granting review in the Pentagon Papers cases, the nine justices of the Supreme Court heard oral arguments.
Daniel Ellsberg surrendered to arrest at the federal courthouse in Boston on June 28, even as a federal grand jury in Los Angeles was indicting him on charges of theft and espionage relating to his role in the Pentagon Papers controversy. In Washington, meanwhile, E. Howard Hunt prepared a memorandum (with the heading “The Neutralization of Ellsberg”) for Nixon aide Chuck Colson in which he proposed building a file of damning information about Ellsberg that might destroy his credibility. Among Hunt’s several suggestions was, “Obtain Ellsberg’s files from his psychiatric analysis.”
On June 30, the Supreme Court announced a per curium decision in New York Times v United States holding that the government had not met its heavy burden of showing a need for an injunction against publication of stories based on the Pentagon Papers. Separate opinions filed by various justices revealed a deep split. Justices Black and Douglas attacked the government’s arguments with vengeance, writing that an injunction “would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make secure.” Justices White and Stewart, concurring, staked out a more moderate ground, suggesting that publication was not in the national interest, but then concluded that they “cannot say that disclosure…will surely result in direct, immediate, and irreparable damage to our Nation or its people.” In dissent, Chief Justice Burger and Justices Blackmun and Harlan complained about the haste with which the case was decided. The three dissenters also argued that sensitive and complex foreign policy decisions of the sort raised in the Pentagon Papers case “should be undertaken only by those directly responsible to the people whose welfare they advance or imperil,” not judges.
The Ellsberg Trial
Ellsberg talks to the media
In a recorded June 29 conversation with Attorney General John Mitchell, Richard Nixon expressed his determination to see Ellsberg brought to justice. Nixon told Mitchell, “The main ball is Ellsberg. We’ve gotta get this son of a bitch….One of our . . . PR types [was] saying, ‘Well, maybe we ought to drop the case if the Supreme Court doesn’t, uh, sustain and so forth.’ And I said, ‘Hell, no!’ I mean you can’t do that….We can’t be in a position of…allowing the fellow to get away with this kind of wholesale thievery, or otherwise it’s going to happen all over the government.'”
Despite strong evidence that Ellsberg copied classified government documents and gave them to the press, the government’s case against him was not without problems. Federal espionage laws targeted most clearly those who provided foreign governments with classified information, not those who gave documents to members of Congress or the American press. Even the theft charge raised issues, as the defense would argue that Ellsberg–unlike the vast majority of “thieves”–sought no personal advantage, or advantage for any third party, from copying documents. The defense could also raise issues about whether an historical record, such as the Pentagon Papers, could properly be classified “top secret.” Still, as defense attorney Leonard Boudin told Ellsberg, “Let’s face it, Dan. Copying seven thousand pages of top secret documents and giving them to the New York Times has a bad ring to it.”
In August 1971, when Anthony Russo was called to testify before the grand jury in Los Angeles about his knowledge of the copying of the Pentagon Papers, he refused to testify, citing his Fifth Amendment privilege against self-incrimination. Even after Justice Department officials promised Russo immunity from prosecution (thus, under precedent, eliminating his Fifth Amendment privilege claim), he still refused to talk. On August 16, Russo was sentenced to jail for contempt of court. He remained there for six weeks. After Russo’s refusal to testify, a new indictment was drafted against both Ellsberg and Russo. On December 29, the indictment was returned against both men, including fifteen counts relating to theft of government documents and espionage. If convicted on all counts, Ellsberg faced the prospect of a 105-year prison sentence.
The first trial of Ellsberg and Russo came to a sudden halt in July 1972 when it was disclosed that the government wiretapped a conversation between one of the defendants and his lawyer or consultants. Although Judge Byrne refused to stop the trial because of the wiretap, Justice William O. Douglas stayed the proceedings until the Supreme Court had a chance to consider the appeal. In November, the U. S. Supreme Court, voting 7 to 2, refused to hear defense arguments arising from the government’s wiretap. Nonetheless, in view of the lengthy break in the trial, Judge Byrne declared a mistrial and ordered a new jury empaneled.
Anthony Russo
Opening arguments in the second trial of Ellsberg and Russo took place on January 17, 1973 in the federal courthouse in Los Angeles. After prosecutor David Nissen summarized what the government’s evidenceagainst the two men would show, defense attorney Leonard Boudin delivered his opening statement. Boudin suggested that the Pentagon Papers “belong to the people of the United States.” Because of this public ownership, Boudin told jurors, copying them and giving them to the press, so that the American people could be told their contents, should not be considered theft. “You will come to the conclusion…that the revelation of this information to your senators and congressmen was helpful to the interests of the United States,” Boudin said.
The government’s witnesses testified that the Pentagon Papers were indeed classified “Top Secret,” that Daniel Ellsberg had signed a security statement with Rand promising not to transmit “classified information to an unauthorized person or agency,” and that neither Anthony Russo or Linda Sinay had any security clearances. Linda Sinay Resnick, an unindicted co-conspirator, told jurors that she observed Ellsberg and Russo copying the secret papers on the Xerox machine in her ad agency office. The final witness for the prosecution, FBI agent Deemer Hippensteel, testified that he found the fingerprints of Ellsberg, Russo, and Sinay on volumes of the Pentagon Papers submitted into evidence. None of the government’s evidence surprised anyone who had been closely following the case.
Morton Halperin, the supervisor of the Pentagon Papers task force, testified for the defense. Halperin testified about the decision to store a copy of the Pentagon Papers “outside the normal Rand top secret control system,” by simply placing them in a separate top secret safe. Halperin told jurors that he approved a request from Ellsberg that he be given access to the volumes for continuing work at Rand’s Santa Monica office on Vietnam policy.
Anthony Russo, on the stand, admitted the obvious: in the fall of 1969, he had helped photocopy the Pentagon Papers at the Hollywood office of his then girlfriend, Linda Sinay. He testified that he did not handle or even see those documents again until arriving in the Los Angeles courtroom. Questioned about his years in Vietnam, Russo told of interviewing Vietnamese in connection with a Rand assignment to prepare a report on the effectiveness of anti-personnel weapons. Russo said he learned of many cases in which “young children would pick up” the shiny, unexploded weapons and take them home, “and then it would go off and kill the whole family.” He testified that his interviews with Vietnamese prompted a realization that the Viet Cong were not “indoctrinated fanatics,” but rather people with “a real commitment” to their cause. Russo said he decided to leave the study when he found that his reports from Viet Nam “were being altered…to promote the role of the Air Force,” Rand’s client. Russo testified about a beach-front conversation with Ellsberg in September 1969. Both men agreed that they had witnessed “a very definite pattern of lying and deception” from U. S. officials concerning Viet Nam policy. On October 1, 1969, Russo testified, Ellsberg visited his home and asked whether he would be willing to help copy the Pentagon Papers study. During cross-examination, in an answer that was objected to and stricken, Russo claimed “any American who cared about his country…would consider it his official duty to get these documents…to the American people.” He admitted, however, that he knew he lacked security clearance to see the documents.
When Daniel Ellsberg took the stand, Boudin questioned him about his experiences in Viet Nam. Ellsberg testified he saw “a very great divergence” between what he learned “along the roads and hamlets of Viet Nam” and what military advisers were telling their bosses. He explained his role on the Pentagon Papers task force and his later interest in securing access to the finished study. He testified, “I knew that not a page of [the Pentagon Papers] could injure the national defense if disclosed to anyone, and had I believed otherwise I would not have copied it.” Ellsberg said he passed on the Papers in the hope that the revelations contained in them “might give Congress the self-confidence to act to end the war.” On cross-examination, Ellsberg conceded that he “had no permission from anyone to remove the documents from the Rand premises.”
Eugenio Martinez, one of the men who broke into the office of Ellsberg’s psychiatrist
On April 27, 1973, Judge Byrne turned over to the defense a shocking memo from Watergate prosecutor Earl Silbert to Assistant Attorney General Henry Peterson. The memo said that Silbert had just learned that “Gordon Liddy and Howard Hunt burglarized the offices of a psychiatrist of Daniel Ellsberg to obtain the psychiatrist’s files relating to Ellsberg.” After news of the memo reached the press, new facts began emerging, including the names of three Cuban-American Bay of Pigs veterans who committed the actual break-in at Dr. Lewis Fielding’s office. (Two of them, Bernhard Barker and Eugenio Martinez, had been arrested inside the Watergate offices of the Democratic National Committee in June, 1972.) Judge Byrne demanded that the government reveal whether “Hunt and Liddy were acting as agents of the government at the time of burglary, and at whose direction.” When it became clear that the break-in was committed by employees of the White House pursuing a project launched by the President, the basis for a mistrial grew compelling. And in Washington, heads began to roll. On April 30, Nixon announced the departures of John Erlichman, H. R. Haldeman, Richard Kleindeist, and John Dean.
On May 11, Judge Bryne ruled on the defense motion for a dismissal of all charges against the defendants based on the government’s gross misconduct. Byrne granted the motion, writing that “the bizarre events have incurably infected the prosecution of this case.” When the judge finished his statement, the courtroom erupted in roars and laughter. Meanwhile, in Washington, Richard Nixon complained to his former chief of staff H. R. Haldeman: “The sonofbitching thief is made a national hero…The New York Times gets a Pulitzer Prize for stealing documents…They’re trying to get us with thieves. What in the name of God have we come to?”
A truly just system must do more than protect the rights of the innocent; it must also respect the humanity of the guilty.
Nothing has changed more in the past couple of decades than attitudes toward the crisis of incarceration in America. What was largely an invisible civilization of confinement—millions of men and women locked up for, cumulatively, millions of years—is now a commonplace concern. Everyone running for the Democratic nomination pays lip service to the need to address mass incarceration, and what were once essential political instincts—to side with the police and the prosecutors in every instance, to “get tough on crime”—have become, at the very least, negotiable. We have gone from “Lock ’em up!” to “Lock ’em up?” to “Set ’em loose!,” all in a relatively short time.
One reason for these changed attitudes is the great crime decline, a falling arc that meant that, for the first time in decades, ordinary citizens could care more about the consequences of imprisonment than they did about the threat of violent crime. Circles of compassion can grow in the absence of everyday fear: safer subways make for an expanded conscience. But there has been an ongoing argument about what, exactly, is responsible for the surge in incarceration. For a long time, the consensus blamed three-strike laws, mandatory minimum sentences, stop-and-frisk, and the rest of the oppressive apparatus of panicked anti-crime policy. Then, just two years ago, the law professor John Pfaff made the argument, persuasively, that the key factor was simply prosecutorial overreach.
There were too many prosecutors who had the astounding freedom to indict anyone more or less as they chose, and who could so overcharge the indicted that plea bargains were forced upon good and bad alike, as confessions were once forced by the Inquisition. By handing enormous discretion to prosecutors—some of them, by the standards of the rest of the world, properly described as politicians, elected to their office and sensitive to voters’ needs, including a metric of success linked to putting people in jail—we had given them the freedom to imprison whomever they wished for as long as they liked. All but about five per cent of criminal cases are resolved by plea bargains, and never go to trial. In the vast majority of cases, Pfaff observed, in his book “Locked In,” inmates ended up behind bars “by signing a piece of paper in a dingy conference room in a county office building.” After 1990, as the crime rate began to fall, the number of line prosecutors soared, and so did the number of the incarcerated. Fewer offenses, more designated offenders.
Now the legal journalist and Times Magazine staff writer Emily Bazelon, in her book “Charged” (Random House), puts flesh and faces to Pfaff’s statistical and largely abstract proposition. “Charged,” though far-reaching in purpose, is above all a study of two cases in which prosecutorial misconduct or overreach put two people through hell. She tells these stories in microscopic detail, analyzing the background of each bizarre stop along the infernal circle—why bail is so hard to get and why it exists at all; why public defenders are often so inadequate—in a way that allows the specific case stories to become general truths. Her book achieves what in-depth first-person reporting should: it humanizes the statistics, makes us aware that every courtroom involves the bureaucratic regimentation of an individual’s life. She has a good ear for talk, and a fine eye for detail; at one point she makes the slightly hallucinatory discovery that the recently elected Brooklyn D.A., Eric Gonzalez, chose his career path after reading Tom Wolfe’s “The Bonfire of the Vanities” as a teen-ager—not an obvious book to point someone on a path toward public service. (He was fascinated not by the deep cynicism of Wolfe’s view but by the way that the D.A. in the novel is able, heroically, to even things up with a Master of the Universe—proof, again, that we find in books what we want to find in books.)
Yet, though Bazelon’s larger points about the madness of prosecutorial power are all impeccably well taken, the two central cases she uses to illustrate these points are somewhat surprising choices. It wouldn’t be hard to find, among the tens of thousands of cases that are plea-bargained in New York City alone every year, one in which a poor kid is penalized by a law that’s out of all proportion to the offense—there are kids who get locked up for drug offenses that in nearby states are no longer even misdemeanors. But Bazelon has written about a twenty-year-old black New Yorker, whom she calls Kevin, who has been arrested for the illegal possession of a loaded handgun and, given his particular charge, was subject to two years of imprisonment, the “mandatory minimum” stipulated by New York’s strict anti-handgun laws. Kevin may well have been, as he insists and as Bazelon accepts, little more than an innocent third party to the gun offense—“holding” the gun for friends rather than using it, or intending to use it, in the commission of a crime. But his prospective sentence was not simply a result of prosecutorial overreach; it was an unintended outcome of well-intended efforts at gun control. Gun violence is an especially brutal plague in poor and minority neighborhoods, and Bazelon acknowledges that Bill de Blasio, the city’s most progressive mayor in decades, has been even more rigorous than his predecessors in encouraging these mandatory-minimum gun-possession indictments.
It’s also true that, on the evidence, there was nothing to be gained by having Kevin in jail for two years, and that his life could well have been maimed as a result. Bazelon suggests that greater prosecutorial discretion is needed in enforcing a law that can unduly punish a kid like Kevin—indeed, she points out that in some jurisdictions in the city there’s a healthy unspoken understanding that kids like Kevin won’t be charged under the law, using various wiggle-room maneuvers to get them out.
A certain irony of this case is that our sense of justice here demands not less but more prosecutorial discretion—more power to charge or not to charge. Remedying the injustice that the law may produce means adding ever more layers of adjudication. In a book about how the punishment of mere misdemeanors can have life-altering consequences, “Punishment Without Crime” (Basic), Alexandra Natapoff calls this process “net widening”: it includes the attempts, which Bazelon tracks in Kevin’s case, to move his offense out of the normal criminal courts and into a special “diversion” program. This adds bureaucratic labyrinth to unjust arrest. “Each of these reforms makes room for more people in the system,” Natapoff, a law professor at U.C. Irvine, writes. Kevin’s case is less an example of reckless prosecution than it is an example of the unbreakable rule of unintended consequences. A well-meant law caught the wrong kid.
The central case in Bazelon’s book was the subject of a Times Magazinearticle that she published in 2017, from which the book evidently grew. It’s the case of Noura Jackson, in Memphis, who was convicted in 2009 of brutally murdering her mother, Jennifer Jackson, a thirty-nine-year-old investment banker, and given a sentence of some twenty years. Noura, as Bazelon calls her, served nine years in prison before the Tennessee Supreme Court found that prosecutorial misconduct had been significant enough to overturn the verdict, and ordered a new trial. (After another year, she was then effectively released on time served.) The Shelby County prosecutor, Amy Weirich, had kept a potentially helpful witness statement from the defense, and, in effect, berated Jackson in her summation for not testifying—an outrageous violation of Fifth Amendment protections against self-incrimination.
The case was a strange one. Noura Jackson, then eighteen, claimed that, after a night of partying, she returned home and discovered her mother’s bleeding body at around five o’clock in the morning. Jennifer Jackson, it turned out, had been stabbed fifty times—instantly marking her murder, to law enforcement, as a “crime of rage,” almost certainly committed by someone who knew the victim well, rather than as a crime of convenience or a burglary gone wrong. One can argue about whether these “profiling” generalizations are empirically sound, but they are prevalent.
And so suspicion fell on Noura, particularly after a relative maintained that Noura had quarrelled with her mother about the dispensation of her estranged father’s estate. (In a stranger-than-cable-television detail, Noura’s father, who ran a convenience store, had been murdered the year before, and surveillance video showed his killers ransacking the store in what appeared to be a desperate search for some unknown object.)
All in all, the case was as atypical as any case can be. Most plea bargaining and imprisonment are, as Pfaff argued and as Bazelon agrees, destructive because invisible; this case, involving the murder of a white middle-class woman in strange circumstances, was anything but. Far from being resolved in one of those dingy rooms Pfaff writes about, this was a hugely publicized, Nancy Grace-style “Court TV” case, steadily sensationalized by the media.
The most damning piece of evidence was a 4 a.m. visit that Noura made on the night of the murder to a Walgreens, where she bought hydrogen peroxide, bandages, and “liquid skin,” and asked a clerk for a paper towel to help stanch her bleeding hand. This seemed, to the prosecutors, all the more incriminating because Noura at first failed to mention the incident to the police, while her later explanations of how and where she had injured her hand changed often
and in suspicious ways. At one point, she insisted that she had burned it while making macaroni and cheese, despite its having been freshly bleeding on the night of the murder. In a call taped by the police, her mother’s sister asked Noura where she was that night, and she answered, “I don’t know.” (Noura tells Bazelon that her aunts had always been prejudiced against her because her father was Lebanese.) Bazelon further notes that none of Noura’s DNA was found at the scene, and that her manicured hands were otherwise immaculate. She also mentions a rumor that the murders of both of Noura’s parents were linked by her father’s alleged participation in a prostitution ring.
Especially difficult to explain is the evidence—which Weirich referred to in a letter that she sent to the Times in response to Bazelon’s piece, and which the paper never printed—of a phone call from inside the Jackson house to a close friend of Noura’s at 12:59 a.m., presumably right around the time of the murder, followed, ten minutes later, by a call from Noura’s cell phone to the same friend. It is hard to see why the mother would have phoned someone who was a stranger to her, and more plausible that it was Noura who first used the landline before switching to her cell. If so, Noura was at least inside the house, which she had denied, around the time of the murder. The matter of her innocence, then, may be less certain than Bazelon supposes. Certainly, no one else has ever been accused of the crime, nor, it seems, has there been even a plausible second suspect. Weirich might well have secured a conviction even if she hadn’t broken the rules.
But she did. There’s no doubt that Noura Jackson became, at trial, the victim of prosecutorial misconduct. Noura had been counselled by her lawyer not to testify—she was on antidepressants, and, anyway, defense attorneys are generally reluctant to allow their clients, however innocent, to be grilled by a skilled prosecutor—and Weirich shamefully took advantage of Noura’s silence to poison the minds of the jurors. “Just tell us where you were,” she shouted. “That’s all we’re asking, Noura!” Weirich concealed from the defense a statement by a friend of Noura’s in which he said that he had been high on Ecstasy on the evening in question and contradicted an earlier account, which had made it seem that Noura had been trying to contrive a coverup. The prosecutorial abuse here arose not from bureaucratic callousness but from a very different psychological process: passionate personal conviction. Because Weirich was absolutely convinced of Noura’s guilt, she was prepared to go to almost any length to convince the jury of what she believed to be true.
There’s a curious logic to the way the lurid and memorable Jackson case stands in for so many other instances of prosecutorial overreach. We tend to understand common experience through the symbolic form of uncommon experience. Indeed, American cultural history could probably be parcelled out as a sequence of sensational murder cases. There was nothing remotely “typical” about the Manson murders or, for that matter, about the O. J. Simpson case, but one came to stand for the disillusion and decline of sixties hippie innocence, the other for the enduring American racial divide. A history of America told through its murders is sensitive to the mood of each period. It’s perhaps significant that, in the nineteen-sixties, questions of misconduct were usually tied to the behavior of the police—this magazine ran a three-part piecedetailing police misconduct in the once famous “Career Girl Murders” of 1963—while these days we focus on the prosecutors, implicating the system’s managers, not simply its laborers.
“Charged” is meant to, and does, provoke pity and terror in us at the sheer inhumanity of all imprisonment. Especially because Bazelon conveys a sense of Noura’s innocence as a thing proven, her account of the long years of Noura’s imprisonment—her desperate search for normalcy, decency—will make you weep to read. A small charm in her brutal years of confinement is that she was befriended by another inmate, Octavia Cartwright, who seems precisely the kind of person the system most casually brutalizes. After breaking into a woman’s home in search of drugs and beating the woman unconscious with the butt of a gun, Cartwright refused a plea bargain that would have given her a twenty-five-year sentence for the nonfatal attack. The prosecutor, in the standard way that prosecutors exact revenge on a suspect for refusing to plead guilty, obtained at trial a sentence of ninety-one years. Cartwright was put in prison for life for one desperate, drug-fuelled incident. Her struggle to make sense of an existence now permanently enclosed within a prison’s walls is one of the more moving accounts in Bazelon’s book.
Cartwright’s story reminds us that the critical cases in arguing about incarceration are the cases not of the innocent but of the guilty. If we believe that Noura Jackson was innocent, it is easy to be indignant about her years in prison. The challenge is to justify her incarceration if we stipulate that she wasn’t. Say, for the sake of argument, that she had murdered her mother. What larger cause would have been served by locking her up, sometimes in solitary, for twenty years without the possibility of parole? Presumably, we want a severe social sanction against matricide; parents will certainly think so. But would a night of crazy rage justify the years—it might well have been a lifetime—of despair and misery enforced by the state? Convinced of Noura’s guilt, should we read the account of her years of imprisonment with a sense of justice done? To put it in the sharpest possible register: would it have been what her mother wanted?
In this respect, again, Bazelon’s specific case seems an odd one to make her point. What we seek from a sense of indignation about America’s criminal-justice system is not to release the innocent but to humanize the treatment of the guilty. Even if all the prisoners had done what they were imprisoned for, the moral question remains whether anyone deserves to be put in a bathroom-size cell for the rest of his or her life.
Making the case for the deincarceration of America means, typically, making the case that the people who get locked up are as much victims of society as they are wicked perpetrators of crime. Born into disadvantage, they arrived, in a sense, imprisoned already. Most of the current crop of books on crime and incarceration make this point in one way or another: Natapoff’s book on misdemeanors makes us aware of how we lock up poor people for long periods for the tiniest of offenses; Erin Kelly’s “The Limits of Blame” gives us a philosopher’s take on the concept of criminal “guilt,” on how easily we miss the larger social context in which crime takes place, and how we need to broaden our blame in order to adjust our justice. In “Prisoners of Politics,” by Rachel Elise Barkow, the dream of ending mass incarceration is rooted in a list of small but effective-sounding reforms, including things as simple as putting ex-inmates on sentencing commissions. Danielle Sered, in “Until We Reckon,” offers a testament to an extralegal process called “restorative justice.” Essentially, it brings perpetrators of violent crimes face to face with their victims in an effort to make both sides see each other not merely as captives of categories—bad person, good person—but as human beings caught in often painful and resistant circumstances. How far such reconciliations can go, and how violent an act the victim is prepared to forgive, or at least understand, is not always clearly defined, but the attempt to move past indictment and incarceration to some social process that holds out hope for transformation rather than just punishment is obviously possessed of moral energy.
The heroic rhetoric of class warfare that sometimes inflects these books can mask the truth that the progress in the past decade concerning the crisis of incarceration has in large part been made on classically American reformist terms. As Bazelon ably reports, the reality of the anti-incarceration movement in this country is that rich philanthropists have been footing much of the bill, prompted simply by evident injustice. George Soros’s foundations have poured millions into supporting anti-incarceration initiatives, and so, astonishingly, have the Koch brothers—some libertarians really do like to see people at liberty, it seems.
But what all of these efforts appear to have in common is an attempt to move us out of the crisis of incarceration by moving us past the question of “guilt,” making us see that the categories of guilty and innocent, whether applied to the wrongdoer or to the one done wrong, miss harder social truths, and replace empathy with bureaucratized vengeance. “The crime is what you did, it’s not who you are” is an aphorism of anti-incarceration activists, and this perspective enlivens almost all the reformist literature.
And so the plethora of new books can sometimes seem to sit just outside the hardest issue. The hardest cases aren’t those of harmless victims of mandatory-minimum laws, like Kevin. The cases that test our convictions involve offenders whose crimes have had real social and human costs. What do we do about the violent carjacker, the armed robber, the brutal assailant? Such people exist, of all kinds and colors, and wishing away the problem of impulsive evil by assimilating it to the easier problem of our universal responsibility for social inequities doesn’t help solve it. It’s often said that white-collar criminals should not be treated better than no-collar ones, and yet the taste for punishing the white-collar miscreant is no less vindictive—indeed, there’s depressing social-science research showing that, once people are made aware of the inequities of the American criminal-justice system, they want even harsher penalties for white-collar offenders. We should all be in this misery together.
So what do we do about the Ponzi schemers, the tax scammers, the money malefactors? William Aramony, the head of United Way of America, got seven years for, in effect, cheating on his expense account. The art dealer Mary Boone is a sixty-seven-year-old woman who is about to go to prison for two and a half years for fiddling her income tax, after having already made restitution of several million dollars to the I.R.S. The pressing issue is not whether white-collar criminals should be punished more or less than others; it is whether the practice of locking anyone up in a closed penitentiary for long periods is an effective way of punishing or preventing criminal behavior. Even if Noura Jackson was as guilty as Amy Weirich and the judge in her case believed she was, her exemplary behavior since her release—Bazelon reports that she was accepted to college, and plans to work in social-justice advocacy—makes it plain that keeping her locked up for much of her life was not a social necessity. Octavia Cartwright committed a violent and life-threatening assault. But—ninety-one years?
In most modern societies, these concerns have largely been eased by time and reform. Plea bargaining—which typically means forcing someone to accept a long sentence out of fear of an even longer one—is unknown in other liberal democracies. It is unlikely, in most Western European countries, that Octavia Cartwright would have been penalized anywhere near as severely. Indeed, even back in the nineteen-thirties the most famous patricide in French criminal history, Violette de Nozière, later the subject of a fine film by Claude Chabrol, was released after a dozen years in prison, and went on to raise a family. The level of recidivism seems unaffected by a more moderate penal regimen.
Ours remains a singularly punitive society, a society obsessed, right and left alike, with inflicting punishment on our preferred villains. Bazelon says that she
spoke to a number of former Shelby County prosecutors who told her that the reward structure of the office “fostered the outlook that ‘everyone is guilty all the time.’ ” Everyone is guilty all the time: this is surely the motto on our national currency. The right-wing desire to appease white fear by locking up black offenders, the desire that has built these penitentiaries and sent away for life women like Octavia Cartwright, is mirrored by the urge that the left feels to annihilate its own sanctioned offenders. The quality of mercy has never been more highly strained than it is in America today.
The acts of moral discipline necessary to show compassion for people we least care for are extremely hard to undertake, but without them our compassion is merely clan feeling. We must always test our moral propositions against their least sympathetic objects, and so we have to ask whether the incarceration of offenders we deplore makes sense. When the sixty-nine-year-old Paul Manafort was given a four-year sentence for, essentially, tax evasion and lying to loan officers, was the judge properly denounced for his “lenience”? (Manafort’s allotted prison time has since doubled.) Is it right that offenders be made to “show remorse,” while feeling none, in order to shave a year or two from a sentence? What’s gained by such ritual displays of abasement?
Perhaps the most radical and challenging of the new approaches to incarceration involves the move to cap all prison sentences at some designated limit. Pfaff, in his book, proposed a test program in which prisoners, including those convicted of violent crime, would, after serving some years, be released when they reached the age of forty; the anti-incarceration activist Marc Mauer has made a similar case with a different figure, arguing, on a Norwegian model, that all prison sentences be capped at twenty years. The evidence is overwhelming that, even with the most seemingly noxious criminals, age and time wear away danger: little violent crime is done by middle-aged people, and eliminating all hope of release is one of the crueler, if unfortunately not at all unusual, punishments we impose.
Yet these sensible policies become emotionally untenable, for different reasons, from one place to another. In parts of the South, the idea of releasing violent home invaders—particularly minority ones—after a “mere” twenty years, or at the age of forty, may be regarded as liberal madness. But blue states have their own taboos. In Manhattan, it isn’t easy to ask for compassion in cases of sexual victimization, or of high-living financial fraudsters. Bazelon creates empathy for Octavia Cartwright, who surely should not be in prison, away from friends and family and simple normal human contact for the rest of her life. But it would seem too much to ask that compassion arise at the imprisonment unto death of, say, Bernard Madoff, who ruined those who trusted him; to pose the question of whether it is really essential, or merely vindictive, to watch him die of old age behind bars. Through “hate crime” statutes and the like, we seek to express abhorrence for acts that should never have been countenanced, concern for victims who should never have been undervalued, but it is an impoverished moral imagination that can contemplate no other form of redress than locking someone in a cage for an ever longer time.
Justice without compassion is something other than civilized. We look back now in proper horror at the rituals of prison hangings, once so frequent in Britain and America both, without thinking that homicide is now acceptable. What was at stake was not the convict’s fate but ours. We have to want to humanize the treatment of those we think “belong” in prison with the same energy with which we agitate for those we don’t. Deincarcerating our society may, in the end, involve making harder, and more foundational, moral choices than we quite care to know. ♦
This article appears in the print edition of the April 15, 2019, issue, with the headline “Locked Up.”
FILE – In this file photo dated Wednesday, March 20, 2019, Italian Interior Minister Matteo Salvini at the Italian Senate, in Rome. Migrants hijacked a cargo ship in Libyan waters on Wednesday March 27, 2019, and have forced the crew to reroute the vessel north toward Europe, and Italian Interior Minister Salvini said the ship, was carrying around 120 migrants, but Italian authorities vowed they would not allow it into their territorial waters.ALESSANDRA TARANTINO, FILE AP PHOTOVALLETTA, MALTA
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Migrants hijacked a cargo ship that rescued them in the Mediterranean Sea and forced the crew to put the Libya-bound vessel on a course north toward Europe, authorities in two European countries said.
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Italy’s interior minister, Matteo Salvini, identified the ship as the Turkish oil tanker El Hiblu 1. He said the tanker had rescued about 120 people and described what was happening as “the first act of piracy on the high seas with migrants” as alleged hijackers.The new route put the ship on a route to Italy’s Lampedusa island and the island nation of Malta. The governments of both countries vowed to keep it from their territorial waters in the Mediterranean
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“Poor castaways, who hijack a merchant ship that saved them because they want to decide the route of the cruise,” Salvini, who heads the anti-migrant League party, was quoted as saying by the ANSA news agency.
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There was no immediate word on the condition of El Hiblu 1’s crew. Other information about the reported hijacking was unavailable or difficult to confirm while the vessel remained at sea.
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Italian media reports said the crew planned to take the group it rescued and was headed that way when migrants seized control of the ship six miles from the Libyan coast.
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A private group that operates a rescue ship and monitors how governments treat migrants, Mediterranea, urged compassion for the group on the hijacked vessel and said it hoped European countries would act “in the name of fundamental rights, remembering that we are dealing with human beings fleeing Hell.”
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The Armed Forces of Malta said military personnel were standing by and the tanker still was in Libyan territorial waters as of early Wednesday night.
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A Maltese military official told Maltese media the ship was carrying 108 migrants. The official was not authorized to speak to reporters and requested anonymity.
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The official also said Malta would not allow the hijacked tanker to enter the country’s waters.
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Italy’s Salvini said weather conditions were not good and it was unclear if the tanker would end up approaching Malta or Lampedusa island. But he had a message for the pirates: “Forget about Italy.”
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Mass migration to Europe has dropped sharply since 2015, when the continent received one million refugees and migrants from countries in the Middle East, Asia and Africa. The surge created a humanitarian crisis in which desperate travelers frequently drowned and leading arrival spots such as Italy and Greece struggled to house large numbers of asylum-seekers.
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Along with the dangerous sea journey itself, those who attempt to cross the Mediterranean risk being stopped by Libya’s coast guard and held in Libyan detention centers that human rights groups have described as bleak places where migrants allegedly suffer routine abuse.
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EU members “alert the Libyan coast guard when refugees and migrants are spotted at sea so they can be taken back to Libya, despite knowing that people there are arbitrarily detained and exposed to widespread torture, rape, killings and exploitation,” Matteo de Bellis, an international migration researcher for Amnesty International, said.
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European Union member countries, responding to domestic opposition to welcoming immigrants, have decided to significantly downscale an EU operation in the Mediterranean, withdrawing their ships and continuing the mission with air surveillance only.
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EU officials on Wednesday lamented the move.
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“This shameful decision has nothing to do with the needs of people who risk their lives at sea, but everything to do with the inability of European governments to agree on a way to share responsibility for them,” de Bellis said.
FILE – In this March 20, 2019, photo, Italian Interior Minister and Vice Premier Matteo Salvini gestures at the Italian Senate in Rome. Migrants hijacked a cargo ship in Libyan waters on Wednesday March 27, 2019, and have forced the crew to reroute the vessel north toward Europe, and Italian Interior Minister Salvini said the ship, was carrying around 120 migrants, but Italian authorities vowed they would not allow it into their territorial waters.ALESSANDRA TARANTINO, FILEAP PHOTVALLETTA, MALTA
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A group of migrants desperate not to go back to Libya made it safely to Europe on Thursday after commandeering the oil tanker that rescued them at sea — a drama that underlined contradictions in Europe’s migration policies and could discourage future rescues.
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Both Italy and Malta initially refused entry to the Palau-flagged El Hiblu 1. But Maltese armed forces intercepted it overnight after confirming with the captain that he was navigating toward Europe against his will. Special forces boarded it and restored control to the crew.The 100 migrants, including 15 women and 47 claiming to be minors, left the tanker in a port near the Maltese capital of Valletta; five were handcuffed after being detained on suspicion of being the ringleaders
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Italy’s hard-line interior minister called the hijacking the “the first act of piracy on the high seas with migrants.” But humanitarian groups rejected that label, saying they were victims of “Europe’s inhumane border policy,” citing reports that many migrants have been mistreated, raped and tortured in Libya.
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The German humanitarian group Sea-Eye said its rescue ship, the Alan Kurdi, was in the area of the El Hiblu 1 when it heard radio communications between the tanker and a European aircraft monitoring the seas.
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The aircraft asked the tanker to respond to two rubber boats, saying that the people on board were “in mortal danger” and that the Libyan coast guard was “out of service.” After the rescue, the captain reported to the aircraft that the migrants “are very upset and do not want to be brought back to Libya.” However, the captain said the Libyan capital of Tripoli was the tanker’s destination.
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Sea-Eye spokeswoman Carlotta Weibl said that they don’t have exact information of what happened aboard the El Hiblu 1, but that “we don’t see it as piracy because those people were claiming their right. It was completely illegal for a European plane to send them back to Libya.”
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Migrants have long reported that commercial ships either ignore smugglers’ boats in distress, or merely stop to give them water, said Hassiba Hadj-Sahraoui, humanitarian affairs adviser with Doctors Without Borders. Similar incidents could accelerate the trend.
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“They are doomed whatever they do,” she said. “This is extremely disturbing for commercial ships. The shipping industry is trying to follow a tenant of international law, which is rescue. … But if you are a commercial ship on tight deadlines and you need to deliver goods, it is an impossible situation.”
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The International Chamber of Shipping based in London expressed concern about the incident and said it would raise the issue with the U.N. International Maritime Organization.
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“If a ship is directed to disembark rescued people in Libya, it creates a potential for conflict between the crew and desperate and frustrated people that might object to being returned,” ICS secretary-general Guy Platten said in a statement. He added that civilian merchant seafarers “can be severely affected by the traumatic situations they have to face, having complied with their legal and humanitarian obligation to come to the rescue of anyone found in distress at sea.”
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The European Union has been training the Libyan coast guard in the hope that it will prevent migrants from entering international waters, where they have routinely been rescued, either by commercial ships or those run by humanitarian groups filling in the void after member countries significantly scaled down an EU operation in the Mediterranean.
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But the contradiction lies in the fact that no EU member considers Libya, or any other northern African country, to be a “safe third country” where migrants can be returned without fear for their well-being. The EU also opposes the death penalty, and in extradition cases generally refuses to send people to countries where they might be killed or tortured.
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Matthew Brook, the acting representative for the U.N. refugee agency in Libya, told reporters in Geneva that the conditions for many migrants in government-run detention centers in Libya were “terrible.” He relayed an anecdote from some migrants that electric shocks were administered to them in vats of water.
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While Europe is reducing its own rescue mission, Italy and Malta have refused to accept aid group rescue ships in their ports. That has led to offshore standoffs with boats loaded with migrants, often weak from their journey and mistreatment in Libya, while EU nations haggle over their fate.
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Many humanitarian groups have stopped taking part in rescues; in fact only the Alan Kurdi is currently active in the central Mediterranean. Doctors Without Borders suspended their operation in December due to port closures, administrative pressure on Panama to pull its flag, and containment measures meaning that fewer migrants were making it past the Libyan coast guard.
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The policies have had the effect desired by populist leaders like Italian Interior Minister Matteo Salvini. Migrant arrivals in Italy were down dramatically last year to 23,370 from nearly 120,000 a year earlier, according to Interior Ministry figures. Deaths at sea also sank to the lowest levels in five years, 2,299, according to the International Organization for Migration.
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Details of what happened aboard the El Hiblu 1 remains sketchy, but the fact that the migrants made it to European soil makes it unlikely that they would be sent back to Libya.
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Naval tracking signals show that the tanker was headed straight toward Libya when it deviated from its course, presumably for the rescue. After resuming toward Libya, it abruptly turned northward, suggesting the moment the hijackers took over, heading toward the island nation of Malta or Italy’s southernmost island of Lampedusa.
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Maltese armed forces established communications with the captain while the ship was still 30 nautical miles offshore. The captain said he was not in control of the vessel “and that he and his crew were being forced and threatened by a number of migrants to proceed to Malta,” the armed forces said.
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A military official who spoke on condition of anonymity because he was not authorized to talk to the media said the migrants did not have weapons, but that the captain and crew were outnumbered and forced to surrender. Special forces backed by a patrol vessel, two fast interceptor craft and a helicopter regained control of the ship, and it was escorted back to Malta with armed military personnel standing guard on deck.
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The condition of the crew was not known, and they were not seen exiting the tanker. Malta officials said they were also being questioned.
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The vessel’s owner, Salah al-Hiblu, said from Tripoli that the tanker was empty and was being captained by his brother, Nader, from Turkey. He said he received a call from Libyan naval guards, who asked him to contact his brother to rescue the migrants. They had resumed the voyage to Tripoli when the migrants “used force” and told him to go to Italy or Malta.
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“The migrants told him, ‘we are not leaving or going back to Libya. We already left Libya to go to Europe,'” al-Hiblu said.
The national flag of New Zealand flies at half mast after Friday’s mosque attacks in Christchurch
New Zealand police are warning citizens they’ll face 10 years in prison for sharing the Christchurch mosque attack video, and a host of websites have been blocked as censors scrub the shooter’s manifesto from the internet.
Video footage of killer Brenton Tarrant’s shooting spree at a Christchurch mosque on Friday – which left 50 worshippers dead – was pulled from Facebook immediately after the massacre. With the footage proliferating on several hosting platforms afterwards, the Kiwi authorities have already charged an 18-year-old man for sharing the video, as well as for posting other “objectionable” comments days before the shooting.
The teenager faces up to ten years in prison, under New Zealand’s ‘objectionable and restricted material’ laws. Police have meanwhile issued an overt threat to anyone else looking for the video.
“Do not download it. Do not share it. If you are found to have a copy of the video or to have shared it, you face fines & potential imprisonment,” read a statement from the police via local news source Wellington Live.
Chinese New Year (of the Pig) Lion dance & Olympia’s Tai-Chi/Kung-Fu club. The club’s Kung-Fu style is Hung-Gar southern style form.
The program was sponsored by the Friends of the Olympia Timberland Library.
Olympia Timberland Library (TRL.ORG), 313 8th Ave SW, (360)352-0595 amicuscuria.com/wordpress
